Court of International Trade

Commerce is not allowed to pick and choose the circumstances under which it accounts for rebates when calculating antidumping duty rates, said the Court of International Trade as it remanded the 2008-09 administrative review on lightweight thermal paper from Germany. Papierfabrik August Koehler’s AD rate had risen from zero to 3.77% when Commerce decided to disregard the rebates because Koehler’s customers may not have known they’d be getting the payments at the time of purchase. But CIT said the move was illegal, because Commerce’s regulations say the agency must adjust for all rebates, not just some.

The Commerce Department is again revoking the antidumping duty orders on ball bearings from Japan and the United Kingdom (A-588-804, A-421-801), after domestic ball bearing companies declined to participate in five-year sunset reviews of the orders. Effective for entries on or after Sept. 15, 2011, Commerce will direct CBP to end suspension of liquidation and AD duty cash deposit requirements.

The Court of International Trade on March 21 rejected Dongtai Peak Honey’s challenge to its antidumping duty rate from the 2010-11 administrative review on honey from China (A-570-864). Peak Honey had been assigned the $2.63 per kilogram AD rate for the “China-wide entity” exporters who didn’t demonstrate independence from state control. Commerce had put Peak Honey in the China-wide entity because the company filed its response to an agency questionnaire on the company’s ownership structure after the applicable deadline, and only requested an extension two days after the deadline had passed. Consequently, Commerce had disregarded the questionnaire response as improperly filed. Peak Honey argued to the court that accuracy would be best served by accepting the questionnaire response even though it was late. But CIT said accuracy must be balanced with the burden on the agency of accepting a late response. In this case, Peak Honey’s submission was long and contained lots of new information, and Commerce was justified in rejecting it, said the court.

The U.S. Court of Appeals for the Federal Circuit on March 18 confirmed the legality of parts of a 2012 law allowing the imposition of countervailing duties on goods from non-market economy countries like China and Vietnam. The Appeals Court affirmed a year-old Court of International Trade decision, finding provisions for adjustment of “double counting” that only apply to CV duty cases decided after 2012 do not violate the Constitution.

The Court of International Trade recently announced changes to its Standard Chambers Procedures, as well as changes to filing fees that follow from increases in fees at the U.S. Court of Appeals for the Federal Circuit. The change to the Standard Chambers Procedures removes a requirement that, if a lawyer becomes aware of an error in a brief, he or she must tell CIT through an error memorandum (here). The changes in filing fees mirror CAFC increases in December (see 13112526), and affect fees for appealing to CAFC, record retrieval, and payments returned or denied for insufficient funds (here). The changes take effect April 1.

The Court of International Trade recently reminded members of its bar in good standing that they must submit a renewal registration form and a $50 registration fee by June 1. Lawyers that do not re-register will be removed from the CIT, without prejudice to his or her ability to apply for readmission as a new member. Law firms can submit a combined payment, said CIT. Under CIT Rule 74, the court requires lawyers that practice at the court to register every five years. The registration form is available (here).

Two manufacturers of ball bearings based in Japan have asked the Supreme Court to decide the longstanding issue of judicial deference in antidumping and countervailing duty cases. In a petition for certiorari dated Feb. 21, NSK and JTEKT argue that the Court of Appeals for the Federal Circuit should only overturn AD/CVD cases at the Court of International Trade if it finds the trade court made an error. Currently, CAFC usually takes a fresh look at each side’s arguments. The Supreme Court appeal says that de novo review creates inefficiency and unpredictability for litigants.

The Court of International Trade again sent back down the 2009-10 antidumping duty administrative review on frozen warmwater shrimp from Vietnam due to concerns over the wage rate Commerce selected to value labor involved in Camau’s production process. The review has already been remanded twice (see 12111602 and 13080201), with Commerce refusing to budge from its use of Bangladeshi wage rates to determine the wages Camau would have paid its workers if it was in a market economy country.

The Court of International Trade on March 3 went back to the drawing board to implement a decision from the U.S. Court of Appeals for the Federal Circuit, affirming the Commerce Department’s original antidumping duty rate for an exporter of pasta from Italy (A-475-818) after the trade court had thrice remanded over the last five years. Commerce had calculated an AD duty rate of 18.18% for Atar in the 2004-05 administrative review on pasta from Italy, but CIT took issue with the rate in a series of decisions until finally in 2012 affirming an AD rate for Atar of 11.76% (see 12080206). But a year later, the Appeals Court reversed the remands, finding Commerce had in fact correctly calculated Atar’s rate in the final results (see 13091128). CIT’s decision now affirms the final results rate of 18.18% in light of the reversal from CAFC. Cash deposit rates for Atar will remain at zero, however, because of a Section 129 decision that took effect July 8, 2012.

The Court of International Trade again sent back the results of the 2007-08 antidumping duty administrative review on certain corrosion-resistant carbon steel flat products from South Korea (A-580-816). CIT had in 2012 remanded the AD rates for South Korean exporters of the product in response to a challenge from Union Steel, Dongbu, and Hyundai HYSCO, as well as domestic producer U.S. Steel (see 12053008). Commerce came back with lower AD rates for the three South Korean exporters, but CIT on March 4 again found fault and remanded.